Bahadur Singh vs Maghar Singh

J.V. Gupta, J.—This revision petition is directed against the order of the trial Court dated April 28 1981 whereby the application filed on behalf of the plaintiff-petitioner under Order IX rule 9 of the Code of Civil Procedure, (hereinafter called the Code), for restoration of the suit was dismissed.

A preliminary objection has been raised on behalf of the defendants-respondents that this revision petition was not competent as an appeal lay against the impugned order under order XLIII, rule 1(c) of the Code, which read as follows :--

ORDER XLIII

APPEALS FROM ORDERS

Appeals from orders. An appeal shall lie from the following orders under the provisions of section 104, namely,--

(a) xx xx xx xx

to

(h) xxx xxx xxx xxx

(c) an order under rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside dismissal of a suit ;

in view of these provisions, it could not be disputed that the impugned order was an appealable one Sub-section (2) to section 15 of the Code provides that the High Court shall not vary or reverse any decree or order under this section against which an appeal lies to the High Court or to any Court subordinate thereto. Thus, there is force in the preliminary objection and it is, therefore, held that the present revision petition is not maintainable.

Consequently, this revision petition is dismissed as being not maintainable with costs.